In Haida Nation v British Columbia the Supreme Court of Canada imposed a duty to consult on the Crown where an Indigenous community asserts that a project or activity impacts its Aboriginal and treaty rights. Further, the extent or degree of that consultation will be assessed in proportion to the degree of the asserted impact on the rights. In Northern Ontario communities affected by herbicide airdropping, the local indigenous communities state that neither the federal or provincial governments have fulfilled this constitutionally mandated duty. TEK, in response, has advocated for meaningful consultation and an outright ban on glyphosate. However, the federal government states that it does not have jurisdictional responsibility, and the provincial government denies that the herbicide is having any impact on the local environment.

This post discusses how the government’s approaches to this particular case reflect a systemic problem in epistemology in which Indigenous traditional knowledge is misunderstood and undervalued. It will also speculate on why the Provincial Crown has avoided its duty to consult thus far.

The underlying assumption here is that western science is superior to ITK and that the science on the uses of glyphosate is settled. This is clearly far from the case. Given that the Indigenous community has asserted its rights and has claimed that use of glyphosate has negative impact on ITK, the Crown’s duty to consult should be triggered. Yet Ontario continues to drag its feet. Instead of ignoring Indigenous calls for consultation, Ontario should put forward the resources needed to meaningfully consult with affected local communities, otherwise this case is most likely to result in litigation which is far costlier and more damaging to the project of national reconciliation in the long-run. Likewise, Ontario could arrange for an Indigenous traditional knowledge studies, similar to those encouraged under section 19(3) of the Environmental Assessment Act, 2012, to be conducted with the affected Indigenous communities. An ITK study would examine how a particular activity, in this case spraying herbicides, impacts ITK practices in a particular area. Such a study would be premised on a balanced recognition of the value of both western and Indigenous knowledge. It should not use western knowledge to either affirm or disprove ITK. Instead, it should be open to the respect and integrity due to ITK and then use both forms of knowledge to examine any existing or potential negative impacts on ITK arising from the spread of herbicides.

Moving Forward

It should be noted, however, that the Indigenous community in this case is unequivocally stating that it does not want the herbicide to be used in its forest. Therefore, consultation or an ITK study may not settle the issue. The Government of Ontario is likely better off recognizing and respecting that the Indigenous community does not want the herbicide to be used in its forest; after all, the community is the primary caretakers of the forest. Engaging in meaningful consultation would also be a strong move towards recognizing the legitimate grievance of indigenous peoples and scaling back of epistemic racism. In the long run, it would likely lead to a stronger partnership between the Provincial Crown and local Indigenous communities, working together as stewards of the forest.

Finally, the reasons for continuing the use of the herbicide are minimal. The area in which the herbicide is used is very small – about the geographic area of Montreal. Any real or perceived benefits from its use are marginal, while the negative impacts on the community are clearly substantial. Since the community is the forest’s primary steward, it is incumbent upon the Province to demonstrate why they should not have the freedom to maintain the forest as they see fit.

Related

Jay Pelletier is a Research Assistant with ABS Canada. He is concurrently completing his Juris Doctor at the University of Ottawa’s Faculty of Law and Master of Arts at Carleton University’s Norman Paterson School of International Affairs. In 2015, Jay graduated from Lakehead University’s Faculty of Political Science with First Class Standing. He is a member of Fort William First Nation, and has previously worked in Indigenous community engagement and development.